Virginia Attorney General Ken Cuccinelli

Conservative jurists and legal academics have long railed against so-called "judicial activism," which they claim is defined as legislating from the bench, as opposed to interpreting the law. But Simon Lazarus, in an article for The National Law Journal, writes that if the conservative justices on the Supreme Court invalidate the health care reform law's individual coverage provision, which requires most Americans to maintain health care insurance starting in 2014, they will effectively revive "the doctrinal apparatus deployed a century ago to abort the modern American regulatory state."

Since Robert Bork, Edwin Meese, Antonin Scalia and their lieutenants founded modern conservative jurisprudence 30 years ago, its core watchword has remained invariant: abhorrence for "activist" judges who "legislate from the bench." To showcase their hostility to activism on the right as well as the left, court-focused conservatives have repeatedly denounced the 1905 U.S. Supreme Court decision Lochner v. New York. Lochner launched and has come to symbolize the notoriously anti-regulatory activism of the first third of the 20th century; the case held that maximum-hours regulation violated employers' and employees' "freedom of contract," a "right" that the five-justice majority divined in the Fifth and 14th amendments' ban on deprivation of liberty without due process of law. Bork called the ruling an "abomination." Meese agreed that the "activist Court of the Lochner era was as illegitimate as the Warren Court." More recently, Chief Justice John Roberts Jr., at his 2005 confirmation hearing, said, "Reading that opinion, it's quite clear that they're not interpreting the law, they're making the law."

One of the leading opponents of the health care law and its individual coverage provision, Virginia Attorney General Kenneth Cuccinelli (pictured), has promoted his efforts against landmark law, the Affordable Care Act (ACA), as aimed at limiting government "across the board," Lazarus writes.

By Simon Lazarus and Sergio Munoz. Lazarus, author of an ACS issue brief, "Mandatory Health Insurance: Is It Constitutional?," and Munoz are attorneys with the Federal Rights Project of the National Senior Citizens Law Center.
In the first judicial decision on the various pending constitutional challenges to the Patient Protection and Affordable Care Act, Pub. L. No. 11-148 (2010) ("Affordable Care Act," "the Act," or "ACA"), Judge Henry E. Hudson of the Eastern District of Virginia District Court denied the Justice Department's motion to dismiss the Commonwealth of Virginia's challenge to Section 1501 of the Act. Cuccinelli v. Sebelius, No. 3:10cv188-HEH (E.D.Va.) (August 2, 2010). Section 1501 requires that most Americans carry minimum levels of health insurance coverage or pay a tax penalty. Judge Hudson's ruling is procedural; it allows the case to proceed to an examination of the merits of Virginia Attorney General Kenneth Cuccinelli's complaint and of the Department's defense that the section is a lawful exercise of Congress' authority under the Commerce, Necessary and Proper, and General Welfare (tax and spend) Clauses of Article I of the Constitution.

The section challenged has been variously styled the "individual mandate," the "minimum coverage provision," and the "shared responsibility provision," the latter of which we will use here. As spelled out in the Department's briefs, statutory findings written into the Act, an amicus curiae brief submitted in the case by the National Senior Citizens Law Center and the Center for American Progress on behalf of 17 patient and health groups, and ACS' issue brief on the subject, the shared responsibility provision "is essential to make effective a prohibition on exclusion from coverage based on pre-existing medical conditions," to ensure that this and other health insurance reforms prescribed by the Act do not "cause premium rates to skyrocket," and to prevent the shifting of uncompensated costs of care for uninsured patients to every other participant in the system, totaling $43 billion annually or $1,100 per family in insurance premium costs. Hence, as acknowledged even in Attorney General Cuccinelli's complaint, the shared responsibility provision is indispensable to the overall structure of the ACA.